Last month, a California federal judge held that Facebook is not responsible for allegedly deceptive advertisements that appeared on its platform, even if Facebook solicited the ads and failed to enforce its own advertising policies. 

California Facebook users sued Facebook’s parent company Meta, asserting false advertising, negligence, and other claims under California law.  The plaintiffs claimed that they had been deceived by various fraudulent ads that had appeared on Facebook.  The Plaintiffs alleged that, after clicking on third-party advertisements seen on Facebook,  they purchased items that they never received.  The Plaintiffs argued that the tech giant should be held liable for the false advertising running on its platform because it “actively solicits, encourages, and assists scam advertisers and Meta knows, or should know, that the scammers use its platform to defraud users with deceptive ads.”

Meta moved to dismiss the action, arguing that the Plaintiffs’ claims were barred by Section 230 of the Communications Decency Act.  Section 230 of the CDA provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

A website that “creates or develops” content “by making a material contribution to its creation or development” is not afforded section 230 immunity, however.  This includes not only just augmenting the content generally, but materially contributing to the alleged unlawfulness of the content.  Thus, immunity is lost when a website contributes to the illegality of the third-party content.

The plaintiffs argued that Meta should not be entitled to Section 230 immunity due to its alleged solicitation and encouragement of advertising on its site by third parties which it knows, or should know, are scammers, and due to the fact that it fails to remove fraudulent ads and enforce its advertising policies.

Granting Meta’s motion to dismiss, the Northern District of California found that immunity should extend to Meta because the Plaintiffs’ claims stem only from Meta’s role as a publisher. The court held that the Plaintiffs allegations did not sufficiently allege that Meta materially contributed to the illegality of the advertisements in question.  The court explained, “Plaintiffs do not plead that Meta required advertisers to post specific content, made suggestions about the content of the ads, or played a role in creating the unlawful ads. Nor do Plaintiffs allege that Meta directly participated in the allegedly fraudulent purchase transactions, which took place on third party websites.” 

The court also held that Meta did not lose its Section 230 immunity by allegedly failing to remove fraudulent ads and enforce its advertising policies.  The court wrote, “numerous courts have rejected the argument that an interactive service provider loses Section 230 immunity if it fails to adequately enforce its ad policies.”

The court granted the Plaintiffs leave to amend the complaint, acknowledging that it is possible that the Plaintiffs could allege that “Meta’s conduct goes beyond mere publication.”  The court explained that if the Plaintiffs could establish that Meta was involved in “creating or developing the allegedly illegal ad content,” then Section 230 immunity might not apply.

Calise v. Meta Platforms

, 2022 WL 1240860 (N.D. Cal. 2022).